CHANGES TO THE PROCEDURE TO BE ADOPTED WHEN A TITLE DEED OR BOND HAS BEEN LOST – Updated January 2020
FURTHER DEVELOPMENTS WITH REGARD TO LOST AND DESTROYED DEEDS
In November last year we alerted you to the change in procedure that would be adopted when a title deed or bond has been lost or destroyed.
We were under the impression that as long as we still lodge the Application to replace the lost deed by 20 December (being the last day for lodgment last year), we would not be struck by this change. The Registrar is however interpreting the wording of the Regulation’s changes very narrowly. The changes state that a certified copy may not be “issued” until the advert has been placed, and this would commence as from 1 January 2020. A certified copy is obviously only “issued” after an Application is lodged, and because the Regulation states that it cannot be “issued” without this advert being placed, the Registrar’s view is that even if we lodged the Application last year, the advert’s still need to be placed, if the certified copy was not “issued” by 1 January 2020! The Deeds Office therefore ruled yesterday morning that they will reject all transfers that were lodged last year, which were accompanied by such an Application, where the certified copies had not yet been issued, and that the new procedure will have to now be followed. Below is the previous article for ease of reference.
This will now cause a delay in all of these transfers (by around 3 – 4 weeks) given the other internal procedures that we have to also follow.
CHANGES TO THE PROCEDURE TO BE ADOPTED WHEN A TITLE DEED OR BOND HAS BEEN LOST
As many of you will know, when an original title deed or mortgage bond has been lost or destroyed, we cannot attend to a transfer, bond registration or bond cancellation, unless the registered holder of the deed, has lodged a formal application with the relevant deeds office, to issue a certified copy of the deed that has been lost or destroyed.
At the end of January 2019 we published a Newsflash, after the deeds office announced an intention to change the current procedure in terms of which applications for certified copies of lost or destroyed deeds are to be made. This new procedure would require that the affidavit in terms of which the application for a certified copy of a lost or destroyed deed is made, be signed in front of a Notary Public (instead of a Commissioner of Oath as per the current procedure), and that notice of one’s intention to apply for a certified copy of a deed had to be advertised in the Government Gazette too!
Fortunately, this new procedure was never implemented.
However, Government has now published a Gazette which has introduced a different procedure, effective as from 1 January 2020. In terms of this procedure, anyone who wishes to apply for a certified copy of a title deed or mortgage bond, must place an advert in any newspaper that circulates in the area where the property is situated, informing the general public of this intention, and allowing any person who wishes to inspect a copy of the title deed or mortgage bond, to do so, and/or to object, within 2 weeks of the advert being published.
In the case of a notarial bond, such advert must be placed in a newspaper that circulates in the area of the deeds office where such a bond has been registered.
Fortunately the application is still in the form of an affidavit to be signed in front of a Commissioner of Oath. The requirement to have such affidavit signed in front a Notary Public has luckily been done away with.
We are not yet entirely clear on the practical implementation of this new procedure by the deeds office, but we expect to receive a circular from the Chief Registrar of Deeds to provide clarity in this respect shortly, and we will advise as soon as such circular has been issued.
This change will certainly make the application for the lost deeds more expensive and it could also cause delays with the transfer or bond registration. Finally, remember that if the property is bonded, the original title deed will be held by the bank and the bank will also have to consent to the application for a lost or destroyed deed.
It is therefore imperative that owners and agents establish as soon as possible whether the original title deed is available, so that if it is lost, we can start the process to obtain a replacement deed immediately.
We would recommend that this issue be resolved at the time of the signing of the mandate.
Miltons Matsemela Inc
12 November 2019